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December 2nd, 2021:

It’s not looking good for Roe v Wade

Dec 2nd, 2021
by Charles Kuffner.
9 comments

Yesterday, it seemed like there was the possibility of a chance that SCOTUS could so something other than eviscerate abortion rights nationally. Today, not so much. I don’t have the energy to write a real post about it, so I’m just going to point you to coverage at The 19th, Slate (twice), TPM, Mother Jones, and Daily Kos. Or you could have spent five minutes on Twitter, or you could be like me and get a billion campaign/action/fundraising emails from a multitude of organizations, all with the same message.

Lots of people think that this will change the political dynamics, and indeed maybe it will. Anger is a strong motivator, and this has already made a lot of folks on my side angry. But winning is a big motivator, too, and the people that have been pushing for forced births for decades are within sight of getting what they want. Whatever happens with the politics, the real world effects of this are going to be very bad, very harmful, and not at all easy to undo. The one thing we can’t do is stop fighting, because the other guys sure aren’t going to.

Vaccine mandate for health care workers blocked

Dec 2nd, 2021
by Charles Kuffner.
8 comments

I’d say this is getting ridiculous, but we’re well past that point.

A federal judge on Monday blocked President Joe Biden’s administration from enforcing a coronavirus vaccine mandate on thousands of health care workers in 10 states that had brought the first legal challenge against the requirement.

The court order said that the federal Centers for Medicare & Medicaid had no clear authority from Congress to enact the vaccine mandate for providers participating in the two government health care programs for the elderly, disabled and poor.

The preliminary injunction by St. Louis-based U.S. District Judge Matthew Schelp applies to a coalition of suing states that includes Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. All those states have either a Republican attorney general or governor. Similar lawsuits also are pending in other states.

The federal rule requires COVID-19 vaccinations for more than 17 million workers nationwide in about 76,000 health care facilities and home health care providers that get funding from the government health programs. Workers are to receive their first dose by Dec. 6 and their second shot by Jan. 4.

The court order against the health care vaccine mandate comes after Biden’s administration suffered a similar setback for a broader policy. A federal court previously placed a hold on a separate rule requiring businesses with more than 100 employees to ensure their workers get vaccinated or else wear masks and get tested weekly for the coronavirus.

Biden’s administration contends federal rules supersede state policies prohibiting vaccine mandates and are essential to slowing the pandemic, which has killed more than 775,000 people in the U.S. About three-fifths of the U.S. population already is fully vaccinated.

But the judge in the health care provider case wrote that federal officials likely overstepped their legal powers.

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” Schelp wrote in his order.

That ruling doesn’t affect Texas, but this one does.

A federal judge on Tuesday blocked the Biden administration’s COVID-19 vaccination mandate for health care workers from going into effect nationwide next week after Texas and other states challenged the order.

Louisiana Western District U.S. Judge Terry Doughty’s ruling follows the same decision on Monday from Missouri U.S. District Judge Matthew Schelp. However, Schelp’s ruling applied for only 10 states.

Doughty wrote in his decision that the mandate exceeds the Biden administration’s authority.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” Doughty wrote.

I Am Not A Lawyer, and I couldn’t find any commentary out there about this, but just knowing that it was two Trump-appointed judges who made these rulings makes me look at them with extreme skepticism. (There are some other reasons for that, as the Daily Kos story indicates. I still want to see some serious lawyers weigh in on it.) The willingness of so many people to put the lives of so many other people in danger just boggles my mind.

On the moderately positive side, there was this.

A judge in Galveston has denied a bid from a group of federal workers seeking an injunction to halt enforcement of the White House’s COVID-19 vaccination mandate, saying they had natural immunity from having been infected with the virus.

John J. Vecchione, senior litigation counsel for the New Civil Liberties Alliance in Washington, D.C., said his team argued it was “arbitrary and capricious” to require vaccinations across the board for all federal employees, because this particular group of workers was not any more dangerous to others than people who have been fully vaccinated. Vecchione says in court documents his clients’ immunity is “at least as robust and durable as that attained through the most effective vaccines.”

[…]

The 11 litigants include a high ranking lawyer at U.S. Immigration and Customs Enforcement from Frisco, a Navy technician from Robstown, an air traffic controller from St. Cloud, Fla. , a Georgia-based veterinary specialist from the Department of Agriculture, a special agent with the Secret Service from Springfield, Va. and a supervisory air marshal with Transportation Security Administration in Palos Verdes, Calif. .

The suit is directed at Dr. Anthony Fauci, others on the COVID response task force and representatives of other federal agencies tasked with enforcement or supervision of the mandate. The deadline for vaccinations was Nov. 22 and enforcement was set to begin some time after Nov. 29.

U.S. District Judge Jeffrey V. Brown denied the workers request for a temporary injunction, saying they did not face irreparable harm if they complied with the mandate and they were unlikely to win their case on the merits. He noted that all but one of the plaintiffs were pursuing religious exemptions that would allow them to avoid the vaccine. The worker who did not seek an exemption works for ICE; the judge said the civil liberties lawyers had probably erred in failing to sue that agency.

Any win for sanity at the district court level feels like it’s written on sand these days, but I’ll take what I can get. Roy Edroso has more.

Greg Abbott’s bet

Dec 2nd, 2021
by Charles Kuffner.
3 comments

What, me worry about blackouts?

Gov. Greg Abbott promised that the state’s electric grid would be able to withstand pressures caused by any potential winter storm that occurs this year in a television interview Friday.

“Listen, very confident about the grid. And I can tell you why, for one: I signed almost a dozen laws that make the power grid more effective,” Abbott said. “I can guarantee the lights will stay on.”

After the winter storm in February that left millions across the state without power, the Legislature passed a number of bills requiring additional “weatherization” measures for companies that maintain the state’s electric grid.

But experts have expressed concerns that loopholes have allowed some natural gas providers to exempt themselves from the weatherization requirements, potentially leaving the system still vulnerable.

“Everything that needed to be done was done to fix the power grid in Texas,” Abbott said in June when he signed two of the bills.

[…]

“You’re going to have another winter and another summer that’s going to strain the electric grid,” said Brandon Rottinghaus, a professor at the University of Houston. “If there’s any kind of problem for people, there’s a direct connection to how Democrats can use that to their political advantage against Republicans.”

Well, “guarantee” is a strong word.

After last winter’s freeze hamstrung power giant Vistra Corp.’s ability to keep electricity flowing for its millions of customers, CEO Curt Morgan said he’d never seen anything like it in his 40 years in the energy industry.

During the peak days of the storm, Vistra, Texas’ largest power generator, sent as much energy as it could to power the state’s failing grid, “often at the expense of making money,” he told lawmakers shortly after the storm.

But it wasn’t enough. The state’s grid neared complete collapse, millions lost power for days in subfreezing temperatures and more than 200 people died.

Since the storm, Texas lawmakers have passed legislation aimed at making the grid more resilient during freezing weather. Signing the bill, Gov. Greg Abbott said “everything that needed to be done was done to fix the power grid.”

But Morgan isn’t so sure. His company has spent $50 million this year preparing more than a dozen of its plants for winter. At the company’s plant in Midlothian, workers have wrapped electric cables with three inches of rubber insulation and built enclosures to help shield valves, pumps and metal pipes.

No matter what Morgan does, though, it won’t be enough to prevent another disaster if there is another severe freeze, he said.

That’s because the state still hasn’t fixed the critical problem that paralyzed his plants: maintaining a sufficient supply of natural gas, Morgan said.

Natural gas slowed to a trickle during the storm, leaving the Midlothian facility and 13 other Vistra power plants that run on gas without enough fuel. The shortage forced Vistra to pay more than $1.5 billion on the spot market for whatever gas was available, costing the company in a matter of days more than twice the amount it usually spends in an entire year. Even then, plants were able to operate at only a fraction of their capacity; the Midlothian facility ran at 30% of full strength during the height of the storm.

“Why couldn’t we get it?” Morgan said recently. “Because the gas system was not weatherized. And so we had natural gas producers that weren’t producing.”

If another major freeze hits Texas this winter, “the same thing could happen,” Morgan said in an interview.

[…]

Texas has done “next to nothing” to weatherize its natural gas supply, said Doug Lewin, an Austin-based energy consultant.

“We don’t have a regulatory system in place that holds the industry accountable. That is the problem,” Lewin said. “It’s not a technology or engineering problem. It’s a regulatory problem.”

And maybe that doesn’t matter, at least for this year. I’m sure Greg Abbott can afford to have a meteorologist on his political staff, and I’m sure that person will have advised him that another freeze like the one we saw this year is unlikely. Even a freeze that isn’t quite as bad probably won’t happen. Given that Abbott isn’t going to lift a finger to improve the grid’s reliability, why not bet big on the more probable outcome, even if the downside is so massive. At this point he’s made his bed anyway, and if we make it through next summer without anything bad happening he gets to claim the credit for it. I’m too risk averse to want to make that bet, but here we are. As they say, it’s a bold move and we’ll see if it pays off for him.

Texas blog roundup for the week of November 29

Dec 2nd, 2021
by Charles Kuffner.
Comments are off for this post

The Texas Progressive Alliance has recovered from its tryptophan coma in time to bring you this week’s roundup.

(more…)

Social media censorship law blocked

Dec 2nd, 2021
by Charles Kuffner.
1 comment

For now. As long as the outlaw Fifth Circuit exists, we can’t say more than that.

A federal judge on Wednesday blocked a Texas law that seeks to restrict how social media companies moderate their content and was championed by Republicans who say the platforms are biased against conservatives.

The law, signed by Gov. Greg Abbott on Sept. 9, would ban platforms with more than 50 million monthly users in the U.S. from removing a user over a “viewpoint” and require them to publicly report information about content removal and account suspensions. It was set to take effect Dec. 2.

In his ruling, U.S. District Judge Robert Pitman wrote that the First Amendment protects social media platforms’ right to moderate content and rejected the defendants’ argument that such companies are “common carriers.” Pitman also ruled that some aspects of the law were “prohibitively vague.”

“This Court is convinced that social media platforms, or at least those covered by [House Bill] 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content,” Pitman wrote.

[…]

Supporters of the law say it ensures that users’ political views go uncensored. State Rep. Briscoe Cain, R-Deer Park — who authored the bill, known as House Bill 20 — compared tech companies to “common carriers” like phone companies or cable providers, which are barred from customer discrimination.

But a federal judge who blocked a similar Florida law in June said such comparisons aren’t accurate. Thomas Leatherbury, the director of the First Amendment Clinic at Southern Methodist University Dedman School of Law, told The Texas Tribune in September that the Texas law is “clearly unconstitutional,” with the same flaws as the Florida law “and then some.”

By targeting only the largest social media platforms, Leatherbury said the law violates the equal protection clause. The law largely prohibits electronic mail service providers from blocking messages based on their content, which Leatherbury said restricts email services’ First Amendment rights.

See here and here for the background. You can see the court order here, some commentary on it here, and NetChoice’s press release here. As with all things, Texas is sure to go running to the Fifth Circuit to get them to ratify their lawlessness, and the usual bet is that the Fifth Circuit will provide room service for them. Maybe this time it will be different since the law attacks businesses instead of just people, but conservatives have decided those particular businesses are Bad for them, so the usual bet is still probably the correct one. But for now, at least this is one terrible new law that won’t get a chance to be enforced. For now.